MARINE SPATIAL PLANNING BILL, 2017

On 28 March 2017, the unshuffled Minister of Environmental Affairs published her intention to introduce the Marine Spatial Planning Bill, 2017 in Parliament, as an ordinary Bill affecting provinces (i.e. in terms of section 76 of the Constitution). A copy of the draft Bill can be accessed here.

The Bill seems to be a next step in executing Operation Phakisa, which includes as one of its projects, “Unlocking the Economic Potential of the Ocean Economy”, with some initiatives planned to be achieved by 2019.

The Bill intends to regulate marine spatial planning in the internal and territorial waters, the exclusive economic zone and the continental shelf. Its objectives include developing and implementing a shared marine spatial planning system and to promote sustainable economic opportunities through coordinated and integrated planning.

It introduces a marine spatial planning system, in terms of which a marine spatial planning framework and knowledge information (electronic) system must be developed, as well as marine area plans. The Bill intends to establish a technical National Working Group on Marine Spatial Planning from competent officials from different departments responsible for defence, energy, environmental affairs, fisheries, mineral resources, transport, science and technology, telecoms etc. The Working Group will be responsible for the development of the marine spatial planning framework and marine area plans, as well as ensuring adequate consultation with relevant stakeholders in this process.

The Minister appears to have broad powers to (after consultation with the Ministerial Committee on Marine Spatial Planning) make regulations in respect of the submission of marine sector plans and other information by organs of state, but also any other matter that is required for the effective implementation of marine spatial planning.

There seems to be an overlap between this Bill and National Environmental Management: Integrated Coastal Management Act 24 of 2008 (ICMA), also administered by the Minister of Environmental Affairs. ICMA provides for coastal planning schemes which seem similar to “marine area plans” contemplated in the Bill. ICMA applies to and regulates the control and management of “coastal waters” defined to include internal waters, territorial waters, the exclusive economic zone and continental shelf, which is what the Bill also intends to regulate. “Coastal waters” also fall within the “coastal public property” and ICMA sets out the purposes for which the coastal public property may be used (e.g. to improve public access to the seashore, to protect sensitive ecosystems etc). The Minister has wide powers under ICMA to make regulations including for “the sustainable use of coastal resources”.

The Bill’s expanse seems to be its aim to create a system that promotes economic growth and is facilitated by coordinated planning across multiple sectors, considering the members of the Working Group being from different departments as well as Director-Generals (DG) from each Department to be appointed to a DG Committee for this purpose. It is envisaged that marine area plans are prepared by the Working Group, if approved by the DG Committee, such plans are sent to the Ministerial Committee on Marine Spatial Planning, and, if approved, the Minister publishes the pans. This is a much more convoluted process as opposed to the Minister of Environmental Affairs publishing regulations under ICMA.

If the concern is the coordination between Departments, in any event, where the Minister of Environmental Affairs intends to publish regulations any interested parties (including all Ministers, MECs or municipalities whose areas of responsibilities will be affected by the exercise of the powers in accordance with the principles of co-operative governance as set out in Chapter 3 of the Constitution) would be entitled to submit comments, objections and raise concerns in a consultation / public participation process.

The overlap with ICMA remains. If the Bill is passed, any plans or frameworks would be required to align with ICMA, which may lead to situations of potential conflict between the plans established under the Bill and ICMA, including duplication of administrative processes or delays in the consulted process of having such plans approved.

If the Bill is passed, stakeholders, including those that may want to develop or protect marine resources, will have to pay close attention to any intended frameworks or area plans and ensure these are properly assessed, understood and commented on, particularly where there may be existing rights or protections in respect of particular marine environments. There will no doubt be diverging perspectives resulting from these processes. The restrictions and authorisations in ICMA should also be observed.